People v. Warder (231 A.D. 215, 1930)

Finch, J.

After a trial at an extraordinary term of the Supreme Court, the defendant has been convicted by a jury of accepting a bribe of $10,000 while occupying the office of Superintendent of Banks of the State of New York, in consideration whereof the defendant neglected his official duty of examining the City Trust Company.

A consideration of this record leads inevitably to the conclusion that the evidence preponderates heavily in favor of the finding of guilt of this defendant. Consequently, in order to set aside the verdict, he is compelled to rely upon alleged errors which occurred during the course of a long trial, commencing October 21 and ending November 5, 1929. These follow:

The defendant, appellant, first urges that the court erred in ruling as a matter of law that the People’s witness Genaro Dell’Osso Was not an accomplice in the commission of the crime. This Was not error. The objection was presented to the court in this manner: At the close of the People’s case the attorney for defendant moved to dismiss upon the ground that there had been no corroboration of the witness Dell’Osso. The learned trial judge then ruled that Dell’Osso was not an accomplice as matter of law. At the conclusion of the whole case the defendant took its position on this question by requesting a charge that Dell’Osso was “ an accomplice as a matter of law.” The trial court refused this request, thereby declining to charge that Dell’Osso was an accomplice as matter of law. It follows that the exception of the defendant, appellant, is to the refusal of the trial court to hold that Dell’Osso was an accomplice as matter of law, which ruling was clearly correct, since upon all the evidence it could not be held by the trial court that Dell’Osso was an accomplice as matter of law. No request Was made that the jury should pass upon the question whether Dell’Osso Was an accomplice as a matter of fact. The only question, therefore, properly before the trial court was whether Dell’Osso was an accomplice as matter of law. A consideration of the testimony shows not only that Dell’Osso was not an accomplice as matter of law, but that he was not an accomplice as a matter of fact, although, as noted, this latter point is not raised for our consideration. Nevertheless We pass to a consideration if, upon this record, there was sufficient evidence to carry to the jury whether Dell’Osso was an accomplice as a matter of fact, and reach the conclusion that there Was not.

Under the authorities, to constitute an accomplice one must be so connected with the crime that at common law he might himself have been convicted either as a principal or as an accessory before the fact. “ He must be shown to have counseled, induced or encouraged the crime.” (Judge O’Brien, writing for the court in People v. Clougher, 246 N. Y. 106, at p. 111.) The question, therefore, presented is whether there is evidence in this record to sustain the conviction if Dell’Osso had been convicted for bribing the defendant. The evidence shows what sort of man Dell’Osso was, his relations with Ferrari and to the banks of Ferrari. Dell’Osso had never worked for any of the banks belonging to Ferrari, nor for the City Trust Company. He had never been anything more than a small depositor in the banks of Ferrari. He was a faithful body servant of Ferrari, a messenger for him. At the times in question he Was superintendent of a building owned by Ferrari, where he had charge of the elevatormen, the payroll and occasionally ran the elevator. Dell’Osso had visited the Harlem branch of the bank many times and a few times the Atlantic Avenue branch. He had an account in the Harlem branch, the average balance of which was about $500. He also had a very insignificant balance in his checking account at the City Trust Company and twice or more he had closed this account. Upon the evidence in this record no conviction of Dell’Osso for counselling, inducing or encouraging the crime of bribing this defendant as Superintendent of Banks in return for an agreement not to examine the City Trust Company could be upheld, and hence he was not an accomplice.

The appellant next urges that it was prejudicial error to permit the district attorney on cross-examination of the defendant to ask questions in relation to the so-called “ little red book.” The purpose of this cross-examination was to make the defendant admit that one of his deputies had come into his office shortly after the failure of the City Trust Company and had given to him a little memorandum book in which was the entry:

“ Cashed check of Atl. for 30,000 F. M. F. V. P. who brought the cash by cab in bills of 1 M & 500 to redraw 425 Riverside Drive Apt. 69. M. F. went to Hightsman party Dir of Fed. & Atl. Bank.

“ Eddy went to Bank Dept, to ask for merger approved